SELLING DEALER AGREEMENT
To Whom It May Concern:
Capital Preferred Yield Fund - V, L.P., a limited partnership
organized under the laws of Delaware (the "Partnership"), CAI Equipment Leasing
VI Corp., a Colorado corporation and the General Partner of the Partnership (the
"General Partner") and CAI Securities Corporation, a California corporation (the
"Dealer-Manager"), hereby enter into this Selling Dealer Agreement (the
"Agreement") with you. All defined terms not otherwise defined herein shall have
the meaning set forth in Article One of the Partnership's Amended and Restated
Agreement of Limited Partnership, as set forth in Exhibit A to the Prospectus
(as defined below). You, together with all other broker-dealers executing this
Agreement, shall be referred to as the "Selling Dealers."
I. Description of the Offering. The Partnership proposes to offer to
investors meeting specified criteria an aggregate of $50,000,000 of its limited
partnership interests ("Units"), consisting of 500,000 Units at a price of $100
per Unit, with a minimum purchase of twenty-five (25) Units per subscriber (ten
(10) Units for IRAs and Qualified Plans). If the Minimum Offering is not
subscribed for on the date 12 months from the date of the Prospectus, the
Offering will terminate and all funds received from subscribers for the Units
will be promptly returned with interest earned thereon. The Offering shall
terminate no later than the date 24 months from the date of the Prospectus. The
Partnership reserves the right to refuse to sell a Unit to any Person at any
time. Persons accepting the offer to subscribe and thereafter purchasing Units
and becoming limited partners of the Partnership are herein referred to as
"Participants." The Partnership and the Offering are more fully described in the
Prospectus (as defined in Section II.A. below).
II. Representations and Warranties of the General Partner, the
Partnership and the Dealer-Manager. The General Partner, the Partnership and the
Dealer-Manager jointly and severally represent, covenant, warrant and agree with
you for your benefit that:
A. The Partnership has prepared and filed with the Securities
and Exchange Commission (the "Commission") a Registration Statement and
amendments thereto, on Form S-1 (File No. ________) covering the registration of
Securities under the Securities Act of 1933 (the "Securities Act") and the Rules
and Regulations of the Commission under the Securities Act (the "Rules and
Regulations"). Such Registration Statement, as amended, at the time it becomes
effective, and the final prospectus included therein, are herein respectively
called the "Registration Statement" and the "Prospectus."
B. The Registration Statement and Prospectus, and all
amendments or supplements thereto, will contain all statements which are
required to be stated therein in accordance with the Securities Act and the
Rules and Regulations and will conform in all material respects with the
requirements of the Securities Act and the Rules and Regulations, and neither
the Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, will contain any untrue statement of a material fact or omit any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
C. The Accountants who have certified or shall certify the
audited financial statements of the Partnership and the General Partner filed
and to be filed with the Commission as part of the Registration Statement and
the Prospectus are independent accountants as required by the Securities Act and
the Rules and Regulations.
D. The financial statements of the Partnership and the General
Partner filed with and as part of the Registration Statement present fairly the
financial position of the Partnership and the General Partner, respectively, as
of the dates of such financial statements, in conformity with generally accepted
accounting principles.
E. Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except as set
forth therein or contemplated thereby: (i) there has not been any material
adverse change in the condition, financial or otherwise, of the Partnership; and
(ii) the Partnership has not incurred any liability or obligation or entered
into any transaction otherwise than in the ordinary course of business, which
change or liability, obligation or transaction is material to the financial
condition of the Partnership.
F. The Units conform to the description thereof contained in
the Prospectus in all material respects.
G. Neither the issuance nor the sale of the Units, nor the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof, will conflict with, result in a breach of or
constitute a default under the terms of any indenture, or other material
agreement or instrument to which the Partnership, the General Partner or the
Dealer-Manager are, or will be, subject, or to the best of their respective
knowledge, any order or regulation applicable to any or all of them of any
court, regulatory or governmental body having jurisdiction over them or any of
their respective properties or operations.
H. The Units, when issued, will be duly authorized, validly
issued, fully paid and nonassessable.
I. The Partnership has been duly formed pursuant to the
Delaware Revised Uniform Limited Partnership Act and is validly existing as a
limited partnership in good standing under the laws of the State of Delaware
with full power and authority to own properties (or interest therein) and
conduct its business as described in the Prospectus. The Partnership is
qualified to do business as a limited partnership or similar entity offering
limited liability in those jurisdictions where such qualification is necessary
to assure limited liability for the limited partners.
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J. The persons who have signed this Agreement on behalf of the
Partnership, the General Partner and the Dealer-Manager, respectively, are duly
authorized to so sign, and this Agreement has been duly executed and delivered
by, and is the valid, legal and binding agreement of, the Partnership, the
General Partner and the Dealer-Manager, enforceable in accordance with its
terms.
III. Representations, Warranties and Agreements of the Selected
Dealer. You represent and warrant to and agree with the General Partner, the
Partnership and the Dealer- Manager as follows:
A. You are registered as a broker-dealer with the Commission,
are a member in good standing of the National Association of Securities Dealers,
Inc. ("NASD") and are duly licensed and authorized to act as a broker-dealer for
the sale of securities in all jurisdictions in which you intend to or will make
offers and/or sales of Units pursuant to this Agreement.
B. In connection with the offer and sale of Units pursuant to
this Agreement, you will comply with all provisions of the Securities Act, the
Rules and Regulations and other federal laws and regulations pertaining to the
sales of securities pursuant to the Offering, the securities or "blue sky" laws
and regulations and other applicable laws and regulations of the states or other
jurisdiction in which you will sell the Units and the Bylaws and the Rules of
Conduct of the NASD, including all published NASD interpretations thereof,
whether issued by the Board of Governors of the NASD, contained in any NASD
Notice to Members or otherwise (the "NASD Rules of Conduct").
C. You will make no sales of the Units unless such sale is
preceded or accompanied by the Prospectus.
D. You will assist the Partnership in qualifying the Units for
sale under the laws of such states or jurisdiction as you and the General
Partner shall mutually agree and shall make no sale of Units in any state or
jurisdiction until you have been advised by the General Partner that the Units
have been duly qualified for sale therein.
E. You will, in accordance with the NASD Rules of Conduct,
including Rule 2810, (i) diligently make inquiries as required by law of all
prospective Participants in order to ascertain whether a purchase of the Units
is suitable for such Person, (ii) promptly transmit to the Dealer-Manager all
fully completed and duly executed Subscription Agreements, (iii) retain in your
records and make available to the Partnership, for a period consistent with the
NASD Rules of Conduct, information establishing that each purchaser of the Units
is within the permitted class of investors under the requirements, if any, of
the jurisdiction in which such purchaser is resident and under the suitability
standards set forth in the Prospectus and the Subscription Agreement, and (iv)
not purchase any Units on behalf of a discretionary account without the prior
approval of the beneficial owner(s) of such account in connection therewith.
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In connection with the foregoing, you will pay particular attention to the
requirements of Rule 2810 of the NASD Rules of Conduct.
F. You have, in accordance with the NASD Rules of Conduct,
including Rule 2810 thereof, conducted an inquiry, or reasonably relied upon the
results of an inquiry conducted with due care by another NASD member (with the
consent of that member) which is not a Sponsor or an Affiliate of a Sponsor,
into the adequacy and accuracy of disclosure of material facts relating to the
Offering. In determining the adequacy of facts, you have obtained (or the NASD
member on whom you have relied has obtained) information relating at a minimum
to the following, if relevant in view of the nature of the Partnership: items of
compensation, physical properties, tax aspects, financial stability and
experience of the Sponsor, the conflicts and risk factors inherent in the
Partnership, and appraisals and other pertinent reports. Prior to the sale of
any Units, you will inform the prospective Participant of all pertinent facts
relating to the liquidity and marketability of the Units during the term of the
investment.
G. Pursuant to your appointment as agent for the Partnership
as set forth in Section IV below, insofar as it is within your control, you will
in good faith use your best efforts to conduct the Offering in compliance with
the Securities Act and the Rules and Regulations, the NASD Rules of Conduct and
the permit(s) or authorizations issued with respect to the Offering by any state
or other securities regulatory authority and in this regard:
1. You will, during the course of the Offering, and
to the extent you or any person associated with you makes any
representations other than those set forth in the Prospectus,
not make any untrue statement of a material fact or omit to
state a material fact required to be stated or necessary to
make any statement made not misleading concerning the Offering
or any matters set forth in or contemplated by the Prospectus.
2. You will, prior to the sale of any of the Units, make
every reasonable effort to determine that an investment in the
Units is a suitable and appropriate investment for each
prospective Participant and you will prepare and maintain for
your benefit and for the benefit of the Partnership and the
General Partner file memoranda and other appropriate records
substantiating the foregoing, which records shall include but
not be limited to the prospective Participant's age,
investment objectives, investment experience, income, net
worth, financial situation and other investments.
3. You will, in the event you use any sales materials
(which, other than any such materials furnished to you by the
Partnership or the Dealer-Manager, shall be prepared and
provided solely at your own expense) other than the
Prospectus, refrain from providing any such materials to any
prospective Participant unless such materials have been
approved by the Commission and the securities regulatory
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authority of the state or other jurisdiction in which the
materials are to be used, and are accompanied or preceded by
the Prospectus.
4. You will provide each prospective Participant with
a copy of the Prospectus and the exhibits thereto during the
course of the Offering and prior to sale obtain a written
acknowledgement from each such Person which, among other
things, contains a representation that such Person understands
that during the course of the Offering and prior to any sale,
he has the opportunity to review all pertinent facts
concerning the Partnership and the General Partner and obtain
other information such Person might request, to the extent
such information is possessed by the Partnership or the
General Partner or obtainable by either of them without
unreasonable effort or expense, in order to verify the
accuracy of the information contained in the Prospectus.
5. Until the Termination Date (as defined in the
Prospectus), if any event affecting the Partnership, the
General Partner, the Dealer-Manager or you should occur which
the General Partner, the Partnership, the Dealer-Manager or
their counsel believe should be set forth in a supplement or
amendment to the Prospectus, you agree to distribute such
supplement or amendment to persons who have previously
received a copy of the Prospectus from you and continue to be
interested in the Partnership and further agree to include
such supplement or amendment in all further deliveries of the
Prospectus. The General Partner shall at its own expense
prepare and furnish to you a reasonable number of copies of
that supplement or amendment for such distribution.
6. You will implement appropriate procedures designed
to assure that each solicitation and sale made by you and the
persons associated with you, and your and their efforts
hereunder, will be in accordance with the terms of this
Agreement and the NASD Rules of Conduct and, particularly with
the terms of Rule 2810 of the NASD Rules of Conduct.
7. In connection with receipt of any sales incentive
amounts, you will at all times comply with the requirements of
the NASD Rules of Conduct, including Rule 2810, thereof.
8. You will at all times comply with the requirements
of Rule 15c2-4 of the Commission, and all interpretations
thereof issued by the NASD. In this regard, upon receipt of
any checks from prospective Participants for Units, you shall
promptly transmit the same, together with a copy of such
Person's Subscription Agreement, to the Dealer-Manager by noon
of the next business day following your receipt thereof.
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9. In recommending to a Participant the purchase,
sale or exchange of a Unit, you will:
(a) have reasonable grounds to believe, on
the basis of information obtained from the
Participant concerning his investment objectives,
other investments, financial situation and needs, and
any other information known by you, that:
(i) the Participant is or will be in
a financial position appropriate to enable
him to realize to a significant extent the
benefits described in the Prospectus,
including the tax benefits where they are a
significant aspect of the Partnership;
(ii) the Participant has a fair
market net worth sufficient to sustain the
risks inherent in the Partnership, including
loss of investment and lack of liquidity;
and
(iii) the Partnership is otherwise
suitable for the Participant; and
(b) maintain in your files documents
disclosing the basis upon which the determination of
suitability was reached as to each Participant.
10. Prior to executing a purchase transaction in
Units of the Partnership, you will inform the prospective
Participant of all pertinent facts relating to the liquidity
and marketability of the Partnership Units during the term of
the investment; provided, however, that this subsection shall
not apply to an initial or secondary public offering of or a
secondary market transaction in a unit, depositary receipt or
other interest in a direct participation program which
complies with Paragraph (b)(2)(D) of Rule 2810 of the NASD
Rules of Conduct.
11. You will provide each Participant with a copy of
the final Prospectus at least five (5) business days prior to
completion of a sale of the Units.
12. You will send each Participant a confirmation of
his or her purchase.
13. You will maintain records of the information used
to determine that an investment in Units is suitable and
appropriate for each investor and you will maintain these
records for at least six years.
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14. In making this determination, you will ascertain
that the prospective investor:
a. meets the minimum income and net worth standards
established for the Partnership;
b. can reasonably benefit from the Partnership based on
the prospective investor's overall investment
objectives and portfolio structure;
c. is able to bear the economic risk of the investment
based on the prospective investor's overall financial
situation; and
d. has apparent understanding of:
(1) the fundamental risks of the investment;
(2) the risk that the investor may lose the entire
investment;
(3) the lack of liquidity of the Units;
(4) the restrictions on transferability of the Units;
(5) the background and qualifications of the Sponsor
or the Persons responsible for directing and
managing the Partnership; and
(6) the tax consequences of the investment.
IV. Sale of Units. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, you
agree to sell the Units on a "best efforts" basis, as agent for the Partnership.
As compensation for these services, the Partnership agrees that the
Dealer-Manager will pay you a sales commission on each Unit sold by you pursuant
to the terms of this Agreement of eight percent (8%) of the offering price of
each such Unit (the "Sales Commission"). In addition, the Partnership (directly
or indirectly through the General Partner or the Dealer-Manager) may reimburse
you for bona fide due diligence expenses of the lesser amount of up to one-half
of one percent (.50%) of the price of Units sold by you or the maximum amount
payable under the NASD Rules of Conduct. The Unit price shall be $100.00, except
that you shall provide a discount to the applicable purchaser of the Units an
amount equal to one percent (1.0%) of the aggregate purchase price of Units as a
reduction in Sales Commission for all purchases of $500,000 or more (a "Volume
Discount"). The Volume Discount applies to an investor's entire purchase of
Units if the aggregate purchase price exceeds $500,000, and the discount will be
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used to purchase additional Units. For purposes of computing the Volume
Discounts, subscriptions for Units may be aggregated if: (i) the legal and
beneficial ownership of Units to be purchased is identical to the legal and
beneficial ownership of all other Units to be aggregated; (ii) all such Units
are purchased through the same Selling Dealer; and (iii) the request to combine
more than one subscription for Units is made at the time of the subsequent
subscription. Any request for aggregating subscriptions will be subject to
verification by the Dealer-Manager, whose determination will be final.
Notwithstanding the foregoing, however, the obligation of the
Partnership to pay the Sales Commission and reimburse you for your bona fide due
diligence expenses as aforesaid shall be subject to the following conditions and
limitations:
A. The General Partner has reserved the right to accept or
reject any subscriptions for Units as set forth in the Prospectus and no Sales
Commission will be payable to you with respect to the tender of any Subscription
Agreement which is rejected by you or the General Partner as aforesaid.
B. None of such Sales Commissions will be payable or paid
until released to the Partnership on the Closing Date, from the escrow account
in which they are to be deposited, of the initial $1,200,000 subscription
proceeds, representing subscriptions for the Minimum Offering amount of 12,000
Units.
V. Certain Covenants of the Partnership and the General Partner. The
Partnership and the General Partner covenant and agree with you as follows:
A. The Partnership will not at any time file or make any
amendment or supplement to the Registration Statement or Prospectus of which you
shall have not previously been advised and furnished a copy.
B. The Partnership will advise you immediately, and confirm
the advice in writing (i) when the Registration Statement shall have become
effective with the Commission; (ii) when any post-effective amendment to the
Registration Statement shall have become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed; (iii) of any request
of the Commission for amendment or supplementation of the Registration Statement
or Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of the qualification of the Units for offering or
sale in any jurisdiction, or of the institution of any proceedings for any such
purposes. The Partnership will use its best efforts to prevent the issuance of
any such stop order or of any order preventing or suspending such use and to
obtain as soon as possible the lifting thereof, if issued.
C. The Partnership will deliver to you without charge, and
when requested, such number of copies of the Prospectus (as supplemented or
amended, if the Partnership shall have made any supplements or amendments
thereto) as you may reasonably request.
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D. The Partnership will comply to the best of its ability with
the Securities Act and the Rules and Regulations so as to permit the continuance
of sales of and dealings in the Units under the Securities Act. If at any time
when a prospectus is required to be delivered under the Securities Act, an event
shall have occurred as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein not false or misleading
or to make the Prospectus comply with the Securities Act, the Partnership will
notify you promptly thereof and will furnish to you an amendment or supplement
which will correct such statement in accordance with the requirements of the
Securities Act and the Rules and Regulations.
E. The Partnership will use its best efforts to qualify the
Units for sale under the laws of such states or jurisdictions as the General
Partner shall determine and will comply to the best of its ability with such
laws so as to permit the continuance of sales of and dealings in the Units
thereunder.
F. The Partnership will furnish to you copies of all such
documents, reports and information as shall be of general interest and are
furnished by the Partnership to Participants generally.
G. The Partnership and the General Partner will pay and bear
all costs and expenses in connection with the preparation, printing and filing
of the Registration Statement, the Prospectus and amendments or supplements
thereto, including fees of legal counsel for the Partnership, the qualifying of
Units under the laws of certain jurisdictions as aforesaid, including filing
fees and fees and disbursements of counsel in connection therewith, and the cost
of furnishing to you and other Selling Dealers copies of the Registration
Statement and the Prospectus and amendments or supplements thereto as herein
provided.
VI. Conditions to Your Obligations. Your obligations hereunder shall be
subject to the accuracy of and compliance with, as of the date hereof and
through the Termination Date, the representations, warranties and covenants of
the Partnership, the General Partner and the Dealer-Manager, as appropriate,
contained in Sections II and V above, to the performance by the General Partner
and the Partnership of their obligations to be performed hereunder, and to the
receipt by you of the following:
A. The favorable opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
counsel for the Partnership and the General Partner, in form and substance
satisfactory to you, to the effect that:
1. The Registration Statement has become effective
under the Securities Act and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated under the Securities Act.
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2. The Registration Statement, the Prospectus, and
each amendment or supplement thereto (except for the financial
statements, as to which counsel need express no opinion) comply as to
form in all material respects with the requirements of the Securities
Act and the Rules and Regulations.
3. Such counsel has participated in the preparation
of the Registration Statement and Prospectus and no facts have come to
the attention of such counsel to lead it to believe that either the
Registration Statement or the Prospectus or any such amendment or
supplement (except for the financial statements, financial and
statistical data, prior performance tables and information concerning
the Selling Dealers, as to which counsel need express no opinion)
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
4. The descriptions in the Registration Statement and
Prospectus of the Partnership Agreement and other documents described
therein are accurate and fairly represent the information required to
be shown.
5. Such counsel does not know of any statutes or
regulations or legal or governmental proceedings required to be
described in the Prospectus which are not described as required, nor of
any agreements or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required.
6. This Agreement has been duly executed and
delivered by the Partnership, the General Partner and the
Dealer-Manager; and (upon the assumption that the Registration
Statement complies with the Securities Act) this Agreement is a valid
and binding agreement of the Partnership, the General Partner and the
Dealer-Manager in accordance with its terms.
B. A certificate dated as of the effective date of the
Registration Statement, signed by the General Partner, on behalf of itself and
the Partnership, to the effect that, as of such date (i) the representations and
warranties of the Partnership and General Partner contained in the Agreement are
correct; and (ii) it has carefully examined the Registration Statement and the
Prospectus, and in its opinion (a) neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and (b)
there are no material legal or governmental proceedings to which the Partnership
or the General Partner is party or of which the business or the property of the
Partnership or the General Partner is the subject which are not disclosed in the
Registration Statement and Prospectus.
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VII. Conditions to Partnership's, General Partner's and
Dealer-Manager's Obligations. The obligations of the General Partner, the
Partnership and the Dealer-Manager shall be subject to the accuracy as of the
date hereof, through the Termination Date, of the representations and warranties
contained in Section III hereof, to the performance by you of your obligations
hereunder required to be performed on or before the Termination Date, and to the
following further conditions, namely, that it is understood and agreed that
neither you nor any of your representatives is authorized to make any
representations on behalf of the Partnership, the General Partner or the
Dealer-Manager other than those contained in the Prospectus, or to act as the
agent of the Partnership or for the Partnership in any other capacity except as
expressly set forth herein, and each time you submit a subscription of a
potential Participant, you shall be deemed to have represented to the
Partnership, the General Partner and the Dealer-Manager that you have complied
with the foregoing conditions.
VIII. Indemnification.
A. The General Partner will indemnify and hold you harmless
against any losses, claims, damages, or liabilities, joint or several:
1. to which you may become subject under the
Securities Act, any state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
the Prospectus or any amendment or supplement thereto, any other
document filed by the Partnership or the General Partner with any state
securities regulatory authority in connection with the Offering or any
sales literature prepared by the Partnership, the General Partner or
the Dealer-Manager, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
unless the statement or omission was the direct result of information
provided to the Partnership or the General Partner or their agents by
you; or
2. to which you may become subject due to any
misrepresentation by the Partnership or the General Partner or their
agents (other than you or any other Selling Dealer) of a material fact
in connection with the sale of the Units, unless the misrepresentation
of such material facts was the direct result of information provided to
the Partnership or the General Partner or their agents by you; or
3. to which you may become subject as a result of any
breach by the Partnership or the General Partner of the representations
and warranties contained herein.
The General Partner will reimburse you for any legal or other
expenses reasonably incurred in connection with investigating or defending any
such loss, claim, damage or liability (or actions in respect thereof); provided,
however, that the General Partner shall not be required to so reimburse you in
any such case to the extent that such loss, claim, damage or liability arises
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out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement or Prospectus,
or any amendment or supplement thereto, any other document filed by the
Partnership or the General Partner with any state securities regulatory
authority in connection with the Offering or in any sales literature prepared by
the Partnership, the General Partner or the Dealer-Manager, in reliance upon and
in conformity with written information furnished to the Partnership, the General
Partner or the Dealer-Manager by you specifically for use therein. This
indemnity agreement shall be in addition to any liabilities which the
Partnership, the General Partner or the Dealer-Manager may otherwise have in
connection with the Offering.
The foregoing indemnity agreement shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each Person, if any,
who controls you within the meaning of the Securities Act.
B. You agree to indemnify and hold harmless the Partnership,
the General Partner and the Dealer-Manager against any losses, claims, damages
or liabilities, joint or several, to which any or all of them may become
subject, under the Securities Act, any state securities laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statements or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, any other document filed by
the Partnership or the General Partner with any state securities regulatory
authority in connection with the Offering or in any sales literature, or upon
the omission or the alleged omission to state in the Registration Statement or
Prospectus or any amendment or supplement thereto, any other document filed by
the Partnership or the General Partner with any state securities regulatory
authority in connection with the Offering or in any sales literature a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement or Prospectus, or amendment or supplement
thereto, any other document filed by the Partnership or the General Partner with
any state securities regulatory authority in connection with the Offering or in
any sales literature, in reliance upon and in conformity with written
information furnished to the Partnership, the General Partner or the
Dealer-Manager by you specifically for use therein (or with respect to sales
literature, to the extent that such sales literature either was prepared by you
or contained information furnished by you); and you will reimburse the
Partnership, the General Partner or the Dealer-Manager for any legal or other
expenses reasonably incurred in connection with investigating or defending any
such loss, claim, damage or liability (or action in respect thereof). This
indemnity agreement shall be in addition to any liabilities to the Partnership,
the General Partner or any other Person which you may otherwise have in
connection with this Offering.
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The foregoing indemnity agreement shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each Person, if any,
who controls the Partnership or the General Partner within the meaning of the
Securities Act.
C. Promptly after receipt by a party hereto of notice of the
commencement of any action for which such party is eligible to be indemnified
hereunder (the "Indemnified Party"), such Indemnified Party shall, if a claim in
respect thereof is to be made against the party required under this Agreement to
indemnify the Indemnified Party (the "Indemnifying Party") notify the
Indemnifying Party in writing of the commencement thereof, within 15 days of
receipt of any complaint, claim or other notice of commencement of an action;
but the omission so to notify the Indemnifying Party shall not relieve it from
any liability which it may have to any Indemnified Party otherwise than under
this Section VIII. In case any such action shall be brought against an
Indemnified Party, such party shall notify the Indemnifying Party of the
commencement thereof, and the Indemnifying Party shall be entitled to
participate in, and, to the extent it shall wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense thereof, with
counsel satisfactory to such Indemnifying and Indemnified Parties. After the
Indemnified Party shall have received notice from the agreed-upon counsel that
the defense has been so assumed, in the event that the Indemnified Party
nonetheless elects to participate in the defense of any such action for any
reason other than the presence of a conflict of interest, the Indemnifying Party
shall not be responsible for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof.
IX. Termination. This Agreement shall automatically be terminated, and
the Partnership shall have no liability for the payment of any commissions or
fees hereunder, in the event of the failure of you and the other Selling Dealers
to sell at least 12,000 Units as of the date 12 months from the date of the
Prospectus or the earlier termination of the offering by the General Partner.
X. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of Colorado.
XI. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered or telegraphed and confirmed to you at your address set forth
above. You, the Partnership, the General Partner or the Dealer-Manager may
change your or their address for receiving notices by written notice to the
other parties hereto.
XII. Parties. This Agreement shall inure to the benefit of and be
binding upon you, the Partnership, the General Partner and the Dealer-Manager,
and each of your and their respective successors and assigns.
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XIII. Severability. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such provision shall be deemed stricken from this
Agreement and such illegality or invalidity shall not affect the validity of the
remainder hereof.
XIV. Headings. The headings in this Agreement are provided for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent, or intent of this Agreement or any provisions thereof.
If the foregoing correctly sets forth our understanding,
please so indicate in the space provided below for that purpose whereupon this
letter shall constitute a binding agreement among us.
Very truly yours,
THE PARTNERSHIP
CAPITAL PREFERRED YIELD FUND - V, X.X.
XXX Equipment Leasing VI Corp.,
as General Partner of
Capital Preferred Yield Fund - V, L.P.,
and on its own behalf
Dated: By:
---------------- -------------------------------------
Title:
----------------------------------
THE DEALER-MANAGER
CAI Securities Corporation
Dated: By:
---------------- -------------------------------------
Title:
----------------------------------
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ACCEPTED:
----------------------------------
Broker/Dealer Firm Name
----------------------------------
Main Office Address
----------------------------------
City, State, Zip
----------------------------------
Telephone Number
By:
-------------------------------
Authorized Signature
----------------------------------
Print or Type Name and Title
----------------------------------
Tax I.D. Number
Date:
-----------------------------
CAI Securities Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
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